Kennedy v Commissioner of Taxation [2007] FCA 932

FEDERAL COURT OF AUSTRALIA

Kennedy v Commissioner of Taxation [2007] FCA 932 TAXATION – application for leave pursuant to s 14ZZO of the Taxation Administration Act 1953 (Cth) to amend an objection in relation to an appealable objection decision JENNIFER MAREE KENNEDY, RODNEY JOHN KENNEDY AND KENNEDY HAULAGE (QLD) PTY LTD v COMMISSIONER OF TAXATION QUD61 OF 2007 QUD62 OF 2007 QUD63 OF 2007 QUD64 OF 2007 QUD65 OF 2007 QUD66 OF 2007

GREENWOOD J

15 JUNE 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD61 OF 2007 QUD62 OF 2007 QUD63 OF 2007 QUD64 OF 2007 QUD65 OF 2007 QUD66 OF 2007

BETWEEN: JENNIFER MAREE KENNEDY

First Applicant

RODNEY JOHN KENNEDY

Second Applicant

KENNEDY HAULAGE (QLD) PTY LTD

Third Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: GREENWOOD J DATE OF ORDER: 15 JUNE 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Leave be given to each applicant to amend the applicant's grounds of objection to include a further ground in the following terms: 'The decision to assess penalty made under Div 298 in schedule 1 to the Taxation Administration Act 1953 (TAA) was not duly made in accordance with law, is thereby a nullity, and is thereby excessive within s 14ZZO TAA in that no debt is owed to the Commonwealth under it: McAndrew v FC of T (1956) 98 CLR 263'. THE COURT DIRECTS THAT: 1. The applicant has leave pursuant to O 16 of the Federal Court Rules to deliver interrogatories to the respondent in relation to the assessment of penalty. 2. The applicant has leave to deliver any interrogatories upon which the applicant proposes to rely on or before 28 June 2007. 3. The respondent answer the applicant's interrogatories (subject to proper objections) by 20 July 2007. 4. The respondent file and serve any Amended Statement of Facts, Issues and Contentions on or before 20 July 2007. 5. The applicant file and serve a Notice to Admit Facts and Documents on or before 3 August 2007. 6. The respondents file and serve a response to the Notice to Admit Facts and Documents on or before 17 August 2007. 7. The applicant file and serve a Statement of Facts, Issues and Contentions and any Affidavits upon which the applicant intends to rely at the hearing of the appeal in relation to the appealable objection decision on or before 31 August 2007. 8. The matter be listed for review at 9.30am on 10 September 2007. 9. The costs of the application and directions hearing are reserved. 10. The parties have liberty to apply to the Court on two days notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.